A persistent concern and
complaint about the direction society has been taking almost
everywhere is the proliferation of rules and regulations,
whether in the form of laws or of codes of conduct. Yet
whenever something goes grievously wrong there is a call for
more of the same. Or else for the culpable to be brought to
book. It is not only that, for a variety of reasons, this
approach is doomed to failure. It is also subversive of the
strength that is needed to combat the ills it pretends to
remedy. A muscle that is not exercised falls into disuse.
Eventually all walk on crutches instead of upright.
Compliance kills discretion.
There are various reasons that a
surfeit of rules (laws, codes) run into trouble. One is that
it is not always clear which rule to apply, or rather, what
the hierarchy of the rules is. So rules are needed to spell
this out. But the diversity of situations means that these
rules – or principles, as they then become – in
turn fail to be sufficiently unambiguous. In fact, the
hierarchy of rules is ever changing. At a certain point the
number of rules and their interactions becomes so great that
no-one has a complete overview.
There is a subtle shift from
justification for actions on the basis of adherence to rules
to thinking and explanation on the basis of reasons. Whereas
being in breach of a rule may invite condemnation, it will
be readily accepted that any one reason may be overturned by
other considerations. But this is not where we are, or where
we seem to be headed. True, there is a solid principle of
Comply Or Explain, but it is propagated too little. And even
within the area of explanation there may be backsliding into
the autistic mindset of correctness. The persons in receipt
of the explanation may themselves not have the moral or
intellectual wherewithal to exercise proper judgement. There
is contention about the role of absolutes and the extent to
which matters are context-dependent, which is mistakenly
thought to make morals relative and therefore arbitrary.
Many of the things that go awry
may be attributed to the system. Each does their own, but
there is no-one in charge with a view of the grand scheme of
things. But it is also the case that individuals with power
of discretion at diverse points can hide behind the opacity
of the rules and the difficulty of detection to wreak havoc.
They may do this from inertia, or from malice, or to further
their own ends.
This phenomenon is also associated
with the anonymity which is inherent in our social systems.
Mass society, at all levels, means that the reputational
checks which operate in a small-scale society have ceased to
apply. Nor do people now much suffer from the fear of God.
There is a further and novel complication with the advent of
social media such that slander is easy and there is scarcely
any defence against it.
In theory, there is still the
law. But legal process is slow, mostly unaffordable, and its
outcome uncertain even when the case is solid. Civil legal
process presupposes that there is a plaintiff (complainant).
But even an identifiable victim may, understandably, be
reluctant to pursue matters. Plus the penalties are often
derisory. Hence the law is only effective, if at all, for
those misdeeds and misdemeanours that come under its radar.
There is no end of poor and indeed atrocious conduct that
cannot, practically, be pursued in the courts or receive
proper chastisement there.
It is this background that gave rise
a few decades ago to movements of business and professional
ethics. But these have largely contented themselves with
elaborating codes of conduct, with academics pontificating
and consultants selling. They too have fallen into the trap
of recourse to conformism in the shape of the buzzword
Compliance. Creating crutches for beggar-thy-neighbour
cripples.
Having set out the background, I
come to the constructive proposal which is the purpose of
this piece.
A cornerstone of Anglo-Saxon culture
is the principle of checks & balances, i.e. of the
dispersion of power. A further cornerstone is the principle
of periodically returning power to the people, i.e. the mass
of the population which do not occupy high positions in a
hierarchy or are members of an elite. This is seen in the
jury system as well as in universal suffrage. But there is
also the ancient principle of people being judged by their
peers, i.e. by persons with similar standing, qualifications
or background.
Much of what goes wrong is
attributable to individuals acting in a "professional"
capacity, whether conscientiously following procedures while
flouting common sense or else abusing their power and de facto
anonymity. So we are talking about a class of professional
actors.
I understand the word
“professional” to apply now to very many jobs
and functions which were previously unheard of. They are,
broadly speaking, middle-class occupations with
corresponding remuneration and standing. Some are emergent.
There are countless associations catering to these new and
niche professions.
Traditionally, professionals have
regulated their affairs internally with the law of the land
doing the heavy-lifting. In medieval times, clergy regulated
clergy, and subsequently lawyers lawyers, medics medics, and
so on. Granted, a few arrangements have come to allow a
look-in from outsiders.
There are two difficulties with this
arrangement. One is that the professionals concerned will be
partial to their own. The other is the opposite, that they
may be vindictive of a fellow professional who does not toe
the line or share their closed-shop mentality.
The proposal here is that (i) the
work of all professions and professionals must be subject to
oversight by other professions. For example, the work of
corporate lawyers might be subject to review by logicians,
mathematicians and linguists. (ii) For professional work,
membership of one of a narrow choice of relevant
associations should be mandatory. Furthermore, (iii) for
each & every decision there must be an identifiable
individual who signs responsible for that decision. Not, as
I understand to be largely the case at present, a department
or a process. “Identifiable” does not mean
“publicly identified”. There would, hence, be as
little collective responsibility as possible.
In any professional capacity there
will be judgement calls. People fall down here for two
reasons. Many will not have developed sufficiently the
capacity for judgement because what they have been trained
to do is compliance. Judgement is a matter of maturity
(experience, perceptiveness, exchange, time to reflect). A
quite different cause of people failing to do right is a
matter of character. There are vested interests and
generally the matter of people failing to be impartial, or
rather, of being excessively partial to their own.
We all make mistakes and
therefore, when individual errors of judgement come to
light, they must be treated with some indulgence. However,
if a pattern of misjudgement emerges, or the volume of
misjudgements is excessive, the individual concerned must be
called to account.
This would be before a properly
constituted ethics committee. Together with likely critics,
I urge caution. The emphasis is on “properly
constituted”. Media reports from diverse quarters
would seem to indicate that many “ethics”
committees are anything but. Some, apparently, are tribunals
for political correctness and conventional prejudice. This
is the perennial problem of who guards the guardians.
Not least as a counterweight to
in-group imbalance, such ethics committees must be composed
substantially of members of other professions. Peers.
Whether fifty-fifty or another mix is a matter for another
day. There would be other safeguards, too.
The key element is that it must be
feasible for professionals (including bureaucrats) who have
a record of causing mayhem to be called to account. They
might produce acceptable reasons for their decisions, in
which case it would be a learning experience for the ethics
committee; or they might concede misjudgement and explain
how they are improving. But in extreme cases they would be
subject to suspension or exclusion from their professional
body. And by no longer being a member of a professional body
they would lose (temporarily or permanently) their employment
or livelihood. This might apply, for example, to individual
civil servants responsible for cases of recklessness as much as to
executives in mismanaged companies. There must be a fear of
loss of vocation and hard-won qualifications greater than any desire for
advancement or fitting in.
There is often talk of the
failings of top-down hierarchies with the implication that
bottom-up is needed. But changing the system is held to be
impossible. Under the above proposal, it would be feasible
for professional bodies to take the initiative and move in
the direction indicated. Hence bottom-up. There would of
course need to be political acquiescence but only to the
extent of there being official recognition of the decisions
of professional associations, which could be facilitated by
skilful public relations and pressure on the political and
managerial actors. None of this can happen overnight. We are
talking about generational change.
SUMMARIZING: No sets of rules or
codes can do justice to the complexity of all decisions to
be taken at the various levels. This does not mean that they
do not have a role to play. Historical and societal changes
have occurred without appreciation that these make other
changes necessary. Since we no longer work much in wider and
life-long communities where we are known and therefore must
take care of our reputation, i.e. since much work is done
anonymously or else in contexts where poor (or indeed good)
conduct is little registered and rapidly forgotten,
traditional mechanisms of oversight have been eroded.
Effective penalties (whether reputational, monetary or
employment-related) are lacking except for high-profile and
extreme cases. Such cases would arise less if there were
novel mechanisms to guide or coax people long before
criminality or gross misconduct arose.
Note that such a change in
structures would make it possible to reverse the
proliferation of laws and regulations as well as of the
codes of conduct which encourage the mindlessness of much
political correctness. Professionals would be constrained to
take personal responsibility for their actions, encouraged
to take the initiative and be immured against unconscionable
pressure from superiors. There would be a restoration and
reinforcement of ethics as a counterweight to legalism.
“Ethics” must be
understood in terms entirely different to the logic of rules
& regulations, which (except for the simple-minded) are
stepping stones to ethical maturity and not stones for
lapidation. In rare cases one might envisage people being
called to account for compliance when they should have had
the moral courage to set rules aside. Moral courage,
incidentally, may mean risking derision and contempt from
one’s fellow men as well as one’s superiors. It
is the rare virtue that distinguishes western culture, with
its figureheads Socrates and Jesus, despised rebels as
impotent as Old Testament prophets or Protestant and
Catholic martyrs post-Reformation. It is by drawing on such
defining virtues and on asymmetric checks & balances
that the West can survive and thrive despite having ceded
its technology to other nations and cultures.
